### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs J

anuary 10, 2001
JAMES ROBERT WHITWORTH v. STATE OF TE NNESSEE Direct Appeal from the Criminal Court for Shelby County No. P23635 James C. Beasley, Jr., Judge

No. W2000-02000-CCA-R3-PC - Filed February 6, 2001

The petitioner, who is currently in the custody of the Mississippi Department of Corrections, entered pleas of guilty in

1974 in the Shelby

Co unt y C riminal Court to the offenses of assault and battery withintent to rape and attempt to commit a felony, to wit: crime against nature. I n 2000, he f

iled a petition to vacate and set aside these sentences, claiming that his pleas of guilty were

not vol unt ary, that his counsel had been ineffective, and that he was innocent of the charges. The post-conviction court dismissed the petition as untimely, the statute of limitations having expired before it was filed; and the petitioner timely appealed. Based upon our review, we af firm the order of thepost

con vic tio n co urt dis mis sin g the pet iti on a s un tim ely. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID G. H AYES and J OHN E VERETT W ILLI AMS , JJ., joined. James Robert Whitworth, Parchman, Mississippi, Pro Se.
Paul G. Summers, Attorney Ge neral and Report

er; Clinton J. Morga

n, Assistant Attorne

y General ; William L. Gibbons, Dis trict Attorney

General; and Pau

la H. Wulff, Assista

nt Distr ict Attorn ey General, for the appellee, State of Tennessee.
OPINION
The petitioner, James RobertWhitworth, who is currently in the custody of the Mississippi Department

of Corrections, c

ollaterall y attac ked his 1974 pleas o f guilty in th

e Shelby Coun

ty Crimi nal Court to assault and battery wit

h the intent to commit

rape and to attem

pt to commit a fel ony, to wit: crime against nature, receiving concurrent sentences of three years for the assault and battery and not less than one nor more than three years for the attempt to commit a felony . Without a hearing, the post-conviction court dismissed his petition styled “Petition to Vacate and Set Aside Conviction,” his pleading referring to the 1995 Post-Conviction Procedure Act as the basis for the post-conviction court’s having jurisdiction of the matter. The single issue on appeal is whether the1 Tenn. Pub. Act s 1986 ch. 634,

§ 1. -2- post-conviction court was correct in concluding that the petition was ba

rred by the

one-year statute of limitations. Tenn. Code Ann. § 40-30-202(a). Based upon our review, we affirm the order of the post-conviction court dismissing the petition as time-barred.
The record shows that the petitioner, on Novem ber 26, 197 4, entered plea s of guilty t

o attempt to commit a felony

, to wit: crime

against nature

and to assault

and battery with intent to rape. On July 6, 2000, he filed his post-conviction petition with the Shelby County Criminal Court. The petitioner asked that both convict ions be vacated because the pleas of guilty were “entered unknowi ngly, involuntarily and without the intellect [sic] as set forth in Boykin v. Alabama” and because the pleas resulted from ineffective assistan ce of cou nsel. Additionally, the petitioner claimedthat he is innocent of the charges. The post-conviction court dismissed the petition without an evidentiary

hearing, holdin

g that “[t]he Statute

of Limitations is one year and it has expired.” The petition er then tim ely appealed fro m that hol ding. During the twenty- six years bet ween the petitione

r’s pleas of gui

lty and his se

eking postconviction relief, several post-conviction statutes were en acted and later replaced by subsequent statutes, as explained by Seals v. State , 23 S.W.2d 272, 275-76 (Tenn. 2000). The Post-Conviction Procedure Act of 1967 did not include a statu

te of limitations for seeking relief, allowing a petition to be filed “at any time after [a petitioner] ha[d] exhausted his appellate remedies and before the sentence ha[d] expired or ha[d] been fully satisfied.” Tenn. Code Ann § 40-30-102 (1982) (repealed 1986). However,

the 1986 Post-Convic

tion Act establishe

d a three-y

ear statute of lim

itations: [a] prisoner i n custo dy under se ntence of a cour

t of this state must petition for post-conviction relief under this chapter within three (3) yearsof the date of the final action of the highest state appellate court to which an appeal is taken or consideration of such petition shall be barred. Tenn. Code Ann. § 40-30-102 (1990) (repealed 1995).
Our supreme court explained, in Sands v. State, 903 S.W.2d 297, 301 (Tenn. 199 5), the impact of the statutory limitations period upon the petitioner in the instant case:

With respect to the fir

st ste p in the analysis, we note that at the time of Sands’ c onvicti on there was no limitation as to when a petitioner could file a post-conviction petition. However, in 1986 the legi sl ature enacted § 40-30-102, which became effective on July 1, 1986. 1 Furthermore, the Court of Criminal Appeals held in Abston v. State , 749 S.W.2d 487 (Tenn. Crim. App. 1988) that § 40-30-102 was to be applied prospe

ctively, wit

h the result being

that all claims arising before July 1, 1983, could be judicially reviewed if f iled-3- before July 1, 1989. The refore, pursu

antto § 40-30-102 and the Abston rule, the limitations period in this case began to run on July 1, 1986. Thus, the statute

of limitations for the seeking of post-conviction relief as to the petitioner’s sen tences began to run on July 1, 1986, and expired on July 1, 1989. Even if t he current post

conviction relief act, enacted in 1995, applied, the p etitioner’s claims would still be stale, for Tennesse e C ode Annotated Section 40-30-202(a) requires that post-conviction relief petitions are untimely unless they are filed “within one (1) y ear of the date of the final action of the highest state appellate court to which an a

ppeal is taken or,

if no appeal is

taken, within one (1) year of the date on w hich the judgme

nt became final . . . .” Since the statute of limitations applicable to the petitioner’s post-conviction claims had expired before the enactment of the 1995 Post-Conviction Procedure Act, that su

bseq uent act did not give him an additional time within which to file such claims. See Carter v. State , 952 S.W.2d 417, 419 (Tenn. 1997). The two exceptions to the current statute of limitations, the e

xceptio ns cod ified at Tenn. Code Ann. § 40-30-202(b) and (c), do not resurrect the petitioner’s claims. Subsection (b) allows such claims when (1) a constitutional right has b een established which was not recognized at the time of trial and is given retroact iv e application, (2)

new scientific e

vidence establis

hes that the petitio

ner is actually

innocent, or (3) a sentence is enhanced ba sed upon a p rior sentence not resulting from a guilty plea, with the prior sentence held to be invalid. Subsection (c) allows the reopening of a post-conviction proceeding under limited circumstan

ces. A lthough the petitioner claims that he is “actually innocent” of the charges to which he enter ed pleas o f

guilty, this naked allegation does not benefit his petition, for i tis not based upon “n

ew scientific ev

idence,” as re

quired by Te

nnessee Code Anno

tated Se ctio n 40-3 0- 202(b)(2). Thus, these exceptions do not apply to the claims made by the petitioner. Acco rdi ngly, we agre

e with the post-con viction co urt that th e instant p

etition wa

s untimely

. We cannot consider the peti

tioner’s pleadin

gs as a petition for writ of habeas corpus because neither the face of the judgments nor

the record of the proceedings make it appear that the convicting court was withoutjurisdiction to sentence the petitioner or that his sentence has expired. See Taylor v. State , 995 S.W.2d 78 , 83 (Tenn. 1 999) (citi ng Archer v. State , 851 S.W.2d 157, 164 (Tenn. 1993)). Thus, we affirm the order of the post-conviction court dismissing the petition.

___________________________________ ALAN E. GLENN, JUDGE